Surrogate mom offered $10K to abort baby

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Story highlights

O'Connor: The legal tug of war shows we need to clarify what "right to choose" means

If we think she's obliged to terminate pregnancy, he says, it means money trumps principle

Surrogates can't be forced, he says; they have right to end or carry out pregnancies

If you can come up with a tale that better illustrates America's messed-up moral views on abortion, parenting and personal freedom than the story of Crystal Kelley -- the surrogate mother who was offered $10,000 by the parents to abort the fetus she was carrying for them -- then you've got a better imagination than I do.

Let's run through the story quickly: Kelley had agreed to be a surrogate and was being paid $2,222 a month by the parents for her trouble. But an ultrasound scan of the fetus showed serious abnormalities. Fearing that the child would never lead a normal life -- whatever that may be -- the parents asked Kelley to abort.

Although the surrogacy agreement contained a clause to this effect, Kelley refused. This is where things became, to put it charitably, unseemly.

The parents offered Kelly an extra $10,000 to terminate the pregnancy. Although she said she was against abortion for religious and moral reasons, Kelley eventually thought she might be able to quash those ethical qualms if the parents paid her $15,000 -- $5,000 apparently being the difference between "against" and "fine with it." The parents refused, and Kelley says she regretted the offer.

From there, events degenerated into the default American setting for dealing with any disagreement: legal proceedings. Ultimately, Kelley decided to have the child, who was born with severe medical conditions and lives with adoptive parents.

Both Kelley and the parents who paid her to be a surrogate have been roundly criticized for their behavior -- let's be honest, no party haggling over the price of an abortion will ever win prizes for public morality. But in truth, neither Kelley nor the parents are to blame here. The problem stems from our conflicted understanding of what we mean when we say a woman has the right to choose what she does with her body.

A woman's right to choose is, of course, the founding principle of the pro-choice movement and its valiant campaign to keep abortion safe and legal -- no matter, for now, that the legality of abortion mostly rests on physician-patient privacy.

But as a principle, the right to choose doesn't just apply to abortion, it also underpins the ethics of surrogacy. The moment a woman isn't freely choosing to be a surrogate mother for someone else -- well, then we're into Victorian Gothic by way of "The Handmaid's Tale" and Ripley in "Alien," and nobody really wants to go there. The idea of someone forcing a woman to bear their child against her will is horrifying.

Of course, Kelley was not forced to be a surrogate. Indeed, she was being rather handsomely paid. Like most surrogates, she is not financially well-off; note the distinct lack of fully employed, millionaire surrogate mothers.

The temptation is to imagine that it is the money that is morally significant. Kelley was being paid, right? So surely she is obliged to do what she is being paid to do? It's a basic capitalist principle: Money buys labor. There are terms and conditions, of course, but once agreed to, the labor must be carried out as agreed.

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A tempting view, but one which insists that you equate being pregnant with any other type of work, from shelf-stacking to brain surgery. This is, of course, nonsense. Pregnancy is something that only happens to women. The whole reason that we embrace the ethical principle of the right to choose is that it goes some way to ensuring that a woman's biology does not come to define her life in a way that would never happen to men.

It is a simple matter of justice: The right to choose goes a long way toward ensuring equal rights and opportunities for women. Turning pregnancy into work that can be bought and sold radically undermines that right. If we have any pretensions about defending a woman's right to choose, then we must defend that right even when, like Kelley, she chooses to change her mind. Even when, like Kelley, her reasoning doesn't always seem consistent.

The alternative is that women's bodies can be packaged up like any other consumer good and sold off to the highest bidder.

This might seem to leave parents who seek surrogacy in a difficult position. How can they be sure that their surrogate will not change her mind and have an abortion -- or, like Kelley, refuse to? The short and uncomfortable answer is that they cannot, although the vast, vast majority of surrogacies are completed to the satisfaction and delight of all sides.

Those who seek surrogacy should understand that it is only possible because we believe in a woman's right to choose. I don't for a moment wish to underestimate the needs and desires of those couples, but I do think it is important for us to recognize that, as an ethical issue, a woman's right to control her body far outweighs anyone's rights to have the child they want.